Federal Court of Australia

AHH20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1209

ORDERS

THE COURT ORDERS THAT:

1.    The application for extension of time filed 21 January 2021 is dismissed.

2.    The applicant is to pay the first respondent’s costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

LEE J:

A    INTRODUCTION

1    This is an application for an extension of time pursuant to r 36.05 of the Federal Court Rules 2011 (Cth) (FCR) to appeal from a decision of the Federal Circuit Court of Australia (FCCA) given on 10 June 2020: AHH20 v Minister for Immigration [2020] FCCA 1518 (primary judgment or J). The primary judge dismissed the applicant’s application for judicial review of a decision of the Immigration Assessment Authority (Authority).

2    The Minister opposes the application, submitting that there is no justification to grant of an extension of time, including because the draft notice of appeal is incompetent and discloses no prospect of success.

3    For the reasons that follow, it seems to me that the appropriate course is to treat the material filed by the applicant as constituting a valid application, and consider the substantive merits of the appeal in order to determine whether it is appropriate to grant an extension of time in all the circumstances.

B     BACKGROUND

4    The background and procedural history of this proceeding was set out in the primary judgment (J [1]–[16]). There is no need for me to rehearse it here in any detail.

5    It sufficies to say that the applicant is from Bangladesh and arrived in Australia as an unauthorised maritime arrival in 2013. In July 2016, the applicant lodged an application for a Safe Haven Enterprise visa. A delegate of the Minister rejected that application and in December 2019, the delegate’s decision was affirmed by the Authority on review.

6    On 17 January 2020, the applicant sought judicial review of the Authority’s decision. On 27 May 2020, the applicant filed an amended judicial review application.

7    As will appear in more detail below, on 10 June 2020 the primary judge refused to grant the applicant leave to rely upon the amended application and dismissed the application for judicial review.

C    APPLICATION FOR AN EXTENSION OF TIME

8    The present application for an extension of time is somewhat unusual, in that it was filed some 224 days after the date upon which the primary judgment was delivered. As to a reason for the delay, the applicant’s affidavit sworn on 20 November 2020 explained as follows:

I was not aware of the decision and was hoping the Department of Home Affairs will write to me about the future steps that I need to take. However, I was incorrect and therefore lodging this application for extension of time.

9    This evidence was not challenged by way of cross-examination. In those circumstances, I should proceed to accept the evidence, which is not inherently improbable, notwithstanding it is a little surprising (given the applicant was legally represented below and had the benefit of counsel at the hearing when the primary judgment was delivered).

10    Having said this, the length of delay is not in itself determinative of an application for an extension of time to file a notice of appeal. The legal principles relevant to the Court’s discretion essentially turn on consideration of, inter alia: (a) the length of the delay; (b) whether there is an acceptable explanation for the delay; (c) the merits of the appeal; and (d) any prejudice to the respondent: see Dunlop v Fishburn (No 3) [2012] FCA 315 (at [9]–[10] per Katzmann J); see also BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 (at [2] per Derrington J).

11    In these circumstances, including where the applicant is now unrepresented, the determinative factor in relation to the application for an extension of time seems to me to be the substantive merits of the proposed appeal. That is, if after reviewing the draft notice of appeal I am satisfied there is a prospect of arguable appeal grounds being articulated, then I may be disposed to grant an extension of time.

D    PROCEEDINGS IN THE FEDERAL CIRCUIT COURT

12    First, it is necessary to consider the Minister’s submission that the application is incompetent. The Minister’s submission relates to the procedure agreed on by the parties before the primary judge. On 24 February 2020, a Registrar of the FCCA made orders, inter alia, that the applicant was to file and serve any amended application giving complete particulars of each ground of review on or before 9 April 2020: J [13].

13    On 27 May 2020, the applicant filed an amended application that contained two new grounds of review, seemingly abandoning the previous grounds. The explanation provided in the supporting affidavit was that counsel had recently been instructed in the matter and had “adopted a different approach to the current application for judicial review”.

14    Given the amended application was filed outside the timeframe specified in the Registrar’s orders, the applicant sought leave during the hearing to rely upon the proposed amended application.

15    The procedural complication in this case arises by reason of the way in which the primary judge dealt with the issue of leave to rely on the amended application (J [20]):

It was agreed between the parties that the appropriate way to deal with this situation was to consider the merits of the matter and then make a decision as to whether there was merit, and if so, whether or not leave should be granted.

16    After dealing with the substance of the two proposed amended grounds of appeal, the primary judge concluded that each proposed ground had no merit and, therefore, refused the application for leave to amend the initial application: see J [52]. Accordingly, the initial application – that is, the grounds that were otherwise not pressed by the applicant – was dismissed: J [53].

17    The Minister points out that, given counsel for the applicant did not press the grounds raised in the initial application, the consequence of the refusal for leave was the dismissal of the proceedings. In this way, the applicant’s real complaint is said to be against the Court’s refusal to grant leave to amend the amended application. On this basis, the Minister submits the decision to which the notice of appeal relates is interlocutory – not final – and the appellant, therefore, requires leave to appeal: s 24(1A) Federal Court of Australia Act 1976 (Cth).

18    All this seems to me to be beside the point, even though I think it likely that the judgment was final and the application should be for leave to appeal out of time, rather than leave to file an application for leave to appeal out of time. Even if the draft notice of appeal proposed to be relied upon before me is misconceived on the basis suggested by the Minister, I consider I should suspend consideration of any technical points raised (because the applicant is unrepresented) and consider the substantive merits. As noted above, if there was an appeal point of substance, in the absence of any real prejudice, I would likely give leave for it to be advanced out of time, irrespective as to whether leave to appeal was also required.

19    Accordingly, it is appropriate to have regard to the primary judge’s reasoning in reaching the conclusion that the two proposed grounds of review in the amended application lacked merit. I have also had regard to the decision and reasons of the Authority to ascertain whether it appears to me that there is any discernible jurisdictional error able to be identified.

E    CONSIDERATION OF THE DRAFT NOTICE OF APPEAL

E.1    Ground One

20    The draft notice of appeal identifies only one ground of appeal. It is in the following terms:

Ground One: Jurisdictional Error – The Authority fell into legal error by misapplying the definition of “receiving country” as defined under s 5 of the [Migration Act 1958 (Cth)] in that it did not determine whether the Applicant was a national of Bangladesh “solely by reference” to the law of Bangladesh.

Particulars

(i) Section 5 of the Act defines “receiving country” to mean:

(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b) If the non-citizen has no country of nationality – a country of his or her formal habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

(ii) Section 36(6) and (7) of the Act states:

Determining nationality

(6) For the purposes of subsection (3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference top the law of that country.

explicitly failed to disaggregate the statutory formulae under Section 36(2)(aa) of the Act.

(7) Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.

(iii) The Authority notes, “In the 2016 SHEV application the applicant indicated he left Bangladesh illegally and that he has never held a passport”. In his Entry Interview form he left blank the section titled “Details of passport used to travel enroute to Australia”

(iv) The Authority concluded, “I find that Bangladesh is his receiving country for the purpose of this review.

(Reproduced without alteration).

21    The terms of ground one are relevantly identical to the first ground in the amended application that was sought to be relied upon before the primary judge.

22    It is important to note that no claim was made before the Authority that the applicant was anything other than a citizen of Bangladesh: J [42]. At all times since the irregular maritime arrival entry interview in Darwin on 26 February 2013, the position of the applicant has been that he was born in Bangladesh to Bangladeshi parents and that he had lived in Bangladesh all his life prior to leaving Bangladesh without a passport. Up until November 2012, it appears that he worked as a construction worker in his home area in the Shariatpur District in central Bangladesh. Further, at least at the time of the decision of the Authority in 2019, it appears that his parents and siblings continued to live in his home district in central Bangladesh.

23    It is against this background that the applicant said the Authority fell into error in that it did not determine whether the applicant was a national of Bangladesh “solely by reference to the law of Bangladesh”.

24    The problem with this argument, as correctly identified by the primary judge (J [35]), is that on all the evidence before the Authority, including the consistent position taken by the applicant since his arrival in Australia, a conclusion that Bangladesh was the receiving country for the purpose of the review was inevitable.

25    In this regard, the “receiving country” is defined in s 5 of the Migration Act 1958 (Cth) (Act) as including “a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.” It is clear that, in the circumstances of the applicant, this must be Bangladesh.

26    At the risk of repetition, at no stage has the applicant ever claimed that he was stateless or had a right to enter or reside in any other country, nor did he seek to provide any submission or further material to the Authority that he was anything other than a Bangladeshi national. It seems to me that ground one was clearly meritless, and there was no error in the primary judge exercising his discretion to refuse leave to rely upon it.

27    Given the terms of the draft notice of appeal and the fact there is only one proposed ground of appeal, the finding in relation to ground one is sufficient to determine adversely the application for an extension of time.

28    Notwithstanding this, I will proceed to consider the second ground advanced before the primary judge in the amended application. This is for two reasons: first, it is appropriate, given that the applicant is not represented, that I satisfy myself that the primary judge did not fall into error in relation to refusing leave to rely upon this ground; and secondly, during the course of his oral submissions today, the applicant has raised a number of matters which at least arguably have some relevance to the proposed ground two below, concerning his ongoing fears as to being returned to Bangladesh and his desire to remain in Australia.

E.2    Ground Two

29    Ground two was proposed below in the following terms (J [16]):

Ground 2

Jurisdictional Error. The Authority failed to take into account a relevant consideration, failed to ask the right question or failed to consider, whether the Applicant faced Significant Harm pursuant to the complementary protection regime in respect of his Illegal Departure Claim, leading to a failure to exercise jurisdiction, giving rise to jurisdictional error.

Particulars

a) The Authority notes: “In the 2016 SHEV application the applicant indicated he left Bangladesh illegally and that he has never held a passport” (the “Illegal Departure Claim”) (CB103 at [31]).

b) In his Entry Interview form the Applicant left blank, the section titled "Details of passport used to travel enroute to Australia". (CB11)

c) The Authority stated “Country information before me indicates that Bangladeshis require a valid passport and visa (depending upon the destination country) to depart from Bangladesh. If they leave otherwise than in accordance with legislation they may face up to one year imprisonment or a fine or both” (the “Country Information”) (CB103 at [31]).

d) The Authority accepted that he departed Bangladesh illegally. (CB103 at [32]).

(Reproduced without alteration).

30    The primary judge summarised the applicant’s submissions regarding ground two as follows (J [23]–[27]):

23.    In relation in ground 2, it was submitted that the Authority failed to take into account a relevant consideration being, whether or not he would face significant harm due to his illegal departure. It was submitted that the applicant did not expressly claim to fear harm in respect of departing Bangladesh illegally or returning to Bangladesh as a failed asylum seeker. As a result, the Authority was required to undertake - pursuant to s 36(2)(aa) of the Act, a detailed assessment of whether in the applicant's circumstances a failed asylum seeker and his illegal departure claim that he was of significant risk of harm if returned to Bangladesh.

24.     The applicant noted that at paragraph 32 of its decision, the Authority found that the applicant could be subjected to a fine or imprisonment for departing Bangladesh illegally. However, the Authority noted that the source of this information was unaware of these penalties being enforced, and the information indicates that the law is not enforced to this regard. The applicant submitted that these findings are conflicting and not one and the same, and that neither dismisses the possibility that the applicant could be imprisoned for departing Bangladesh.

25.     It was submitted that there was substantial grounds for believing that there was a necessary and foreseeable consequence of being removed from Australia to Bangladesh. There was a risk that the applicant would suffer significant harm and the Authority failed to grapple with that question. The Authority was required to consider what might happen to the applicant if he were to be imprisoned for departing Bangladesh illegally in light of Bangladesh's poor human rights record, in prison conditions and the peculiar circumstances that the applicant faced as a failed asylum seeker who departed Bangladesh illegally and does not have a passport.

26.     The Authority noted prison conditions in Bangladesh were very poor with severe overcrowding. Presently they do not meet the minimum international standards for adequate light, air decency and privacy and do not have adequate toilets, and I was referred in this regard to a DFAT report at Case Book page 103, paragraph 31.

27.     The applicant submits that the above excerpts heighten the need for the Authority to undertake the assessment in the complementary protection requirements. It was submitted that the illegal departure claim is neither subsumed within a claim of generality within the conclusion at paragraph 37 of the Authority's decision.

31    Before the primary judge, the Minister distilled the applicant’s submissions regarding ground two into the following two aspects of contention (J [36]):

(1)    the Authority's findings in respect that the applicant was an illegal departurer were made in respect of s 36(2)(a) and not s 36(2)(aa) of the Act; and

(2)    the Authority should have considered the risk of the applicant being imprisoned in Bangladesh insofar as it accepted that departing without a valid passport was an offence that may attract a penalty of up to one year imprisonment and/or a fine.

32    In relation to the first of these matters, and as recorded by the primary judge (J [37] and [51]), these were dispositive findings which were made in the course of the Authority’s refugee assessment, and the Authority was entitled to make its complementary protection findings based on the previous refugee findings.

33    The Authority made a factual finding, on the basis of the material before it, that there was no chance that the applicant would be prosecuted or in prison. Accordingly, the Authority was not required to consider the risk of harm from the conditions in Bangladeshi prisons. As the primary judge said (J [51]):

The Authority was entitled to make its complementary protection findings based on the previous refugee findings. This is entirely orthodox; see SZSGA v Minister for Immigration and Multicultural Affairs and Citizenship [2013] FCA 614 at [31] per Marshall J. As it found there would no chance he would be prosecuted or imprisoned, no risk of harm from the conditions in Bangladeshi prisons arose for the Authority to consider ground 2 reveals no jurisdictional error.

(Emphasis added).

34    Further, the primary judge was satisfied that, on the analysis of the country information before it, it was open to the Authority to make its findings that the applicant would not face prosecution for his illegal departure: J [47]–[48].

35    As to the second of these matters, it appears the primary judge accepted (J [47]) the Minister’s submissions outlined in the primary judgment (J [38]). That is, the primary judge accepted that there was nothing contradictory about the Authority’s findings, or its reliance on the country information before it. As the primary judge said (J [50]):

It is well-settled that the country information to which the Authority has regard in the way that it gives that information is a matter for the Authority, see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10].

36    There is no error evident in this reasoning. Even if it were appropriate to go beyond the grounds proposed in the draft notice of appeal filed in this Court, there is no appellable error evident in the reasoning of the primary judge to refuse leave to amend to rely on this ground. Further, by reason of my independent review of the Authority’s decision, I am satisfied that that no obvious jurisdictional error is discernible.

37    With no disrespect to the applicant, what is being sought is really a form of merits review, as his oral submissions today indicate. As I attempted to explain to him, irrespective of the view that I took as to the underlying factual matters, that is not a role for this Court.

F    CONCLUSION

38    Given that the draft notice of appeal advanced in support of the application of extension to time does not have substantive merit, the appropriate order to make is to dismiss the application with costs. I will make a further direction that the order that I have pronounced not be entered until the time of publication of the revised reasons for this judgment.

Associate:

Dated:    7 October 2021